VANCOUVER (NEWS1130) – The Supreme Court of Canada has ruled people who have a low viral load when having sex are no longer legally obligated to tell their sexual partners they carry the virus.

Critics had argued that there have been significant medical advances since a 1998 ruling that said anyone who did not disclose an HIV infection could face charges of aggravated assault; they argued people living with HIV and AIDS were being unnecessarily criminalized.

These advances mean anyone with a low virus load and who takes precautions has virtually no chance of transmitting HIV. The court agrees; the justices have updated and clarified the 1998 ruling and left the door open to adapting future changes in medical science.

BC’s provincial medical health officer’s reaction

“My hope would be that [the ruling] would not discourage anybody from being tested,” says Dr. Perry Kendall, BC’s provincial medical health officer.

“We are trying to expand and normalize testing because with the advent of highly active anti-retroviral therapy, you can reduce people’s viral loads to zero, to undetectable,” he notes.

“Generally, it’s considered people who are willing to have sex should be fully-informed about any risk they undertake or not; that’s an ethical duty rather than, I think, a legal duty, although now we have some legal parameters around it,” adds Kendall.

Positive Living Association BC

“It’s a step backwards for public health and human rights,” argues Ken Buchanan with the Positive Living Association BC, which supports people living with AIDS. “It will further stigmatize people; it will cause people not to be tested. We were hoping for a ruling that would make it easier, [and with] less stigma, when people get tested. Make it more open to disclose.” 

“The use of a condom greatly reduces the risk and now they are saying condom and low viral load,” he adds.

“In the last 14 years, there [have] been significant advances in scientific knowledge but still the Supreme Court has decided that condoms are not enough. We know that condoms, when used correctly, are 100-per cent effective,” adds Buchanan.

BC Civil Liberties Association

Michael Vonn with the BC Civil Liberties Association says the ruling is not in any way a victory for people living with HIV and AIDS who were criminalized under the 1998 decision.

“We’ve had Crown not prosecuting people who are carefully using a condom as the responsible thing to do. Now, the court has said ‘No, I’m sorry, that’s not good enough. Not only do you have to do that; you have to have an undetectable viral load,’” she explains.

“We want more than clarity in the law; we want justice,” says Vonn, who suggests condom use and a low viral load are each sufficient on their own to prevent HIV transmission.

“Is this going to make it easier for people to test? Is this going to make it easier for us to counsel people on how to disclose to their sexual partners?” she wonders.

She adds the ruling does nothing for sexual health in any regard.

Legal analyst

News1130 legal analyst Michael Shapray reminds us someone with a higher level of HIV and doesn’t use protection could still fall within the grasp of the criminal law.

“I don’t think the law has changed at all with respect to anybody who’s either predatory or reckless with respect to their condition and having unprotected sex with other people in Canada,” explains Shapray.

“I think the law has only changed with respect to people who fit within the confines — ie: have a low level of the virus and use protection. Some of the high-profile cases we’ve seen where there has been criminal prosecutions and convictions wouldn’t be affected at all by this ruling,” he adds.

“I think what it shows is that the Supreme Court has recognized that the law always has to evolve,” says Shapray.